United States District Court, M.D. Georgia, Macon Division
REPORT AND RECOMMENDATION
CHARLES H. WEIGLE, UNITED STATES MAGISTRATE JUDGE
the Court is a motion for partial summary judgment filed by
Plaintiff Hjalmar Rodriguez Jr. (Doc. 235). It is
RECOMMENDED that Plaintiff's motion be
DENIED. Also before the Court is the
Defendants' motion for summary judgment. (Doc. 233). It
is RECOMMENDED that the Defendants'
motion be GRANTED in part and DENIED in part
such that (1) the Court grant summary judgment for Defendant
Burnside on Plaintiff's deliberate indifference claim
related to his hand injury, and that (2) the Court permit
Plaintiff to proceed to trial on all remaining claims. Those
remaining claims consist of: (A) an excessive force claim
against Defendant Clupper; (B) retaliation claims against
Defendants Clupper, Kyles, Powell and Logan; and (C) a
deliberate indifference claim against Defendant Burnside
related to an embedded bullet.
connection with review of the record, Plaintiff's motion
to submit additional evidence (Doc. 286) is
GRANTED. A second motion (Doc. 288) in which
Plaintiff asks the Court to “consider[ Plaintiff's]
already filed response and reply, ” is also
GRANTED. Although it is not clear precisely
what relief Plaintiff sought in this motion, Plaintiff
correctly notes that the Defendants failed to file an amended
transcript of Plaintiff's deposition as instructed. See
(Doc. 287, p. 2).
claims in this action arise from three separate incidents.
First, Plaintiff's excessive force claim and one of his
deliberate indifference to medical needs claims relate to a
hand injury that Plaintiff suffered on December 19, 2013,
while incarcerated at the Georgia Diagnostic and
Classification Prison (“GDCP”). Plaintiff alleges
that Defendant Clupper slammed a “tray flap” onto
Plaintiff's hand and that Defendant Burnside, a
physician, failed to provide Plaintiff with adequate
follow-up medical care.
in the days following the tray flap incident, Plaintiff
alleges that Defendants Clupper and Kyles, as well as
Defendants Powell and Logan, retaliated against Plaintiff for
his use of the prison grievance system. See O'Bryant
v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011)
(“An inmate may maintain a cause of action for
retaliation under 42 U.S.C. § 1983 by showing that a
prison official's actions were the result of the
inmate's having filed a grievance”) (internal
punctuation omitted). According to Plaintiff, Defendant
Clupper and Kyles's retaliatory acts consisted of (1)
issuing a “falsified” disciplinary report that
resulted in Plaintiff's transfer to a more restrictive
cellblock, and (2) resorting to a disciplinary report, as
opposed to some lesser disciplinary measure. Plaintiff claims
that Defendants Powell and Logan retaliated by keeping
Plaintiff in the more restrictive cellblock even after the
disciplinary report was subsequently dismissed for
“factual statement not being supportive.”
(Disciplinary Report, Doc. 1-5, p. 1).
Plaintiff alleges that Defendant Burnside provided inadequate
medical care for a bullet left in Plaintiff's upper left
thigh after a shooting in 1997. According to Plaintiff, this
bullet moved over time down Plaintiff's leg and toward
the back of his knee, causing Plaintiff to suffer from pain
on movement. Eventually, the bullet ruptured Plaintiff's
skin, and Plaintiff was able to extract the bullet himself,
although he developed an infection. See generally
(Pl.'s Dep., Doc. 233-2, pp. 19-22). Plaintiff claims
that Defendant Burnside was deliberately indifferent by
delaying the surgical removal of the bullet and by
prescribing only ibuprofen, a medication that causes
Plaintiff painful side effects. The facts underlying all of
these claims are set out in greater detail below.
alleges that he suffered food poisoning after an evening meal
on December 19, 2013, and that he asked Defendant Clupper,
the officer on duty, for medical assistance. (Pl.'s Dep.,
Doc. 233-2, pp. 6-8). After Defendant Clupper ignored
Plaintiff's requests for medical assistance “for
about fifteen, twenty minutes, ” Plaintiff placed his
right hand through the “tray flap, ” a 5-inch by
12-inch opening in his cell door. (Id., p. 7).
According to Plaintiff, this act of “peaceful
protest” was “done to get the OIC, the officer in
charge, down to the dorm, ” so that Plaintiff could
request medical assistance from that different officer.
(Id.). A prison policy governing
“Feeding/Handcuff Slot[s]” provides guidance on
tray flap conduct, (Pl.'s Mot. for Partial Summ. J., Doc.
235-2, pp. 74-75), and Plaintiff appears to acknowledge that
he violated at least the spirit of this policy, as it is
written. See (Pl.'s Dep., Doc. 233-2, pp.
10-11). Plaintiff argues, though, that the policy was not
enforced as written:
A. This policy … is never enforced. I've never
seen it enforced …. It has never been enforced on me.
Q. You're saying usually how it would go, you would stick
your hand in the flap, the officer in charge would come down,
you would remove your hand, and then you would talk with the
officer using that one inch space.
Q. That is typically how it would go?
A. Yes, ma'am.
Dep., Doc. 233-2, p. 11)
response to Plaintiff's act of placing his hand out of
the tray flap opening “a little over my wrist, ”
(Pl.'s Dep., Doc. 233-2, p. 9), the parties agree that
Defendant Clupper closed the tray flap onto Plaintiff's
hand. Defendant Clupper asserts that he used “positive
pressure, ” meaning he gradually pressed the tray flap
onto Plaintiff's hand, thereby pinching Plaintiff's
hand between the flap and the cell door. (Defs.'
Statement of Facts, Doc. 233-8, p. 3, ¶ 17). Plaintiff,
by contrast, testified that Defendant Clupper
“slam[med] that flap on my hand with his strength,
” causing Plaintiff to suffer from pain, swelling,
bruising, and a broken bone. (Pl.'s Dep., Doc. 233-2, pp.
9- 10). While the record in this case contains no picture of
the tray flap, Plaintiff describes it as a small, iron
rectangle that opens by folding down. (Id., p. 7).
parties disagree as to whether Defendant Clupper warned
Plaintiff prior to using force. Plaintiff asserts that
Defendant Clupper gave a single instruction for Plaintiff to
“get away from the flap, ” and then
“without warning … closed the flap while my hand
was still there and injured my hand.” (Id.,
pp. 7, 9). Defendant Clupper, by contrast, testifies that he
instructed Plaintiff “several times” to remove
his hand from the tray flap opening. (Clupper Aff., Doc.
233-3, ¶ 10). Defendant Clupper states that he resorted
to force only “[w]hen it became clear that Inmate
Rodriguez was not going to comply.” (Id.,
¶ 11). Incident reports drafted by Defendant Kyles, the
“OIC” who subsequently arrived on the scene, do
not discuss instructions or warnings. See (Incident
Report, Doc. 221-14, p. 2). (Supplemental Report, Doc.
221-11, p. 3). Plaintiff received a disciplinary citation for
“fail[ing] to follow instructions, ” but that
citation was later “dismissed due to charge and factual
statement not being supportive.” (Disciplinary Report,
Doc. 1-5, p. 1).
Plaintiff withdrew his hand from the tray flap opening, and
after Defendant Kyles arrived on the scene, Plaintiff claims
that he asked for, but did not receive, any medical
assistance for his hand. (Pl.'s Dep., Doc. 233-2, p. 12).
Defendant Kyles's incident report also indicates that
Plaintiff received no medical attention: it states,
“since the inmate was not in any distress at the time
he could be checked in the morning.” (Incident Report,
Doc. 221-14, p. 2).
next morning, on December 20, 2013, Plaintiff was transferred
from his cell in cellblock B to a different cell with more
restrictive conditions in cellblock E. (Pl.'s Dep., Doc.
233-2, p. 15). As discussed below, this transfer reflected
Plaintiff's assignment to “Phase 4” of the
GDCP's special management unit or SMU. See (SMU
Privilege List, Doc. 1-4, p. 1). During the course of his
transfer, Plaintiff contends that he walked by the prison
medical facility and that a nurse, Mary Gore, visually
inspected Plaintiff's hand but perceived no injury.
Plaintiff describes the encounter as follows:
[T]o go from B Wing to E Wing, you have to cross from the
east side to the west side, this real long hallway. You have
to pass by medical. As I got to the door of medical, Mary
Gore stepped out of medical and my hands were handcuffed
behind my back. She simply looked behind my back, said he was
all right, you go ahead.
So I didn't actually go in medical. I breezed [b]y
medical and she looked at I guess -- looked behind me and
said I was all right.
(Pl.'s Dep, Doc. 233-2, p. 15)
Court previously dismissed Plaintiff's deliberate
indifference claim against Nurse Gore for failure to exhaust
administrative remedies. See (Doc. 183),
adopting as modified (Doc. 134).
following months, Plaintiff claims that he submitted
successive requests for medical care that went unanswered.
(Pl.'s Resp., Doc. 281-1, p. 18 (citing Doc.116)).
See also (Pl.'s Dep., Doc. 233-2, p. 16). One
medical-service request dated February 13, 2014, states:
“My hand does not function accordingly it hurts to bend
… my fingers i.e. right pinky and ring finger.”
(Doc. 116-5, p. 3). The record also contains a prison
grievance in which Plaintiff complains that Nurse Gore
“is not a doctor nor does she have x ray vision.”
(Unnumbered Grievance, Doc. 40-9, p. 2). The Court previously
ruled that this grievance was not credible as to the issue of
exhaustion of administrative remedies. See (Doc.
183, p. 9, n. 2).
evidence suggests that Defendant Burnside, a GDCP physician,
had contemporaneous knowledge of either Plaintiff's hand
injury or Plaintiff's prison grievances and
medical-service requests prior to a December 9, 2014
treatment session. See (Medical Encounter Form, Doc.
113-2, p. 9). At that treatment session, Plaintiff claims he
received care only for symptoms associated with the bullet in
his leg. See (Pl.'s Dep., Doc. 233-2, p. 17).
Plaintiff contends that Defendant Burnside “refused to
[e]ntertain the issue in reg[ard] to my hand, ” and
that he instead directed Plaintiff to “submit[ a]
separate medical request” as to that issue. (Grievance
No. 188043, Doc. 114-2, p. 10). There is no indication that
Plaintiff had sought medical care for his hand during an
earlier September 2014 treatment session. See
(Progress Record, Doc. 113-2, p. 7). A later record from a
subsequent August 2015 treatment session shows that Defendant
Burnside provided medical care for both Plaintiff's hand
and leg without any discussion of a “single issue
rule.” See (Medical Encounter Form, Doc.
113-2, p. 12). Cf. (Pl.'s Dep., Doc. 233-2, p.
17) (“He said he would only see me about one medical
issue at a time”).
the December 9, 2014 treatment session, Plaintiff returned to
Defendant Burnside on March 10, 2015, for hand-related
medical care. (Burnside Aff., Doc. 113-2, ¶ 13). The
treatment note from that March 2015 session records
Plaintiff's report of suffering a hand injury around one
year before and also records Plaintiff's complaints of
resulting hand pain, stiffness, and cramping when writing.
(Medical Encounter Form, Doc. 113-2, p. 10). (Pl.'s Dep.,
Doc. 233-2, p. 18). The treatment note appears to state
“No Problem Seen, ” but it also shows that
Defendant Burnside ordered an x-ray, which revealed an
“Old healed boxer's fx 4th metacarpal, ”
along with “No acute fx, dislocation or joint
disease.” (Radiological Consultation dated March 12,
2015, Doc. 113-2, p. 11). The record gives no indication of
how old Plaintiff's healed metacarpal fracture was.
Burnside contends that Plaintiff “wanted me to re-break
and re-set his finger, ” but that Defendant Burnside
refused this course of treatment. (Burnside Aff., Doc. 113-2,
¶ 15). Plaintiff disputes Defendant Burnside's
account. See (Pl.'s Dep., Doc. 233-2, p. 18).
The record indicates that Plaintiff refused to accept any
medication during the March 2015 treatment session, although
as discussed below, Plaintiff's refusal was based on his
aversion to ibuprofen, which according to Plaintiff is
“all Burnside will prescribe for pain and/or
anything.” (Pl.'s Responsive Facts, Doc. 281-2, p.
15). Plaintiff acknowledges, however, that he had regular
access to aspirin in his cellblock. See (Pl.'s
Dep., Doc. 233-2, p. 19).
the tray flap incident, Defendants Clupper and Kyles issued a
disciplinary report charging Plaintiff with “fail to
follow instructions.” (Disciplinary Report No. 445395,
Doc. 1-5, p. 1). The disciplinary report, served upon
Plaintiff on December 20, 2013, included the following
On 12-19-13 at 1925 hrs I Officer Clupper, Derek was picking
up trays[.] Inmate Rodriquez Hjalmar #1036561 tried to force
the flap open as it [was] being closed and got his finger
tips caught between the flap and the door. I Officer Clupper
opened the flap far enough for Inmate Rodriquez to move his
fingers out while instructing him to remove his hands from
the flap. After the flap was closed Inmate Rodriquez started
hollering “I'm going to get your fat ass, I'm
not going to be in here forever and I'm going to blow
your head off with a shotgun.” “I'm going to
get all of yall.[”] OIC was notified of the event.
Inmate Rodriquez remains in cell LD-B-112 pending
Plaintiff notes, the disciplinary report did not charge
Plaintiff with “verbal threatening.” ...